Queens

Published on: October 9, 2013

Court Discusses Kinship Hearing

by Stephen Bilkis

This is a motion after a kinship hearing, holding that the entire distributable estate of a deceased woman should be deposited with one person. The complainant seeks to leave to present additional testimony.

A New York Probate Lawyer said the request for the alternative relief of reopening the hearing appears to present a case of first impression under the attorney-client privilege. The complainant contends that it is permissible for an attorney to testify about history statements made by the deceased woman to him when she consulted him for the purpose of preparing a last will. It is conceded that the consultation did not result in any last will being completed. Subsequently, an objection to the aforesaid offered testimony was sustained at the trial. The complainant’s position is that since the attorney is a disinterested witness, who is willing to testify about matters which will not reveal information of a confidential nature, the attorney-client privilege should not be utilized to seal his lips.

A New York Will Lawyer said sources revealed that the attorney-client privilege is the oldest of the privileges currently recognized.

Published on: October 8, 2013

Court Discusses Decedent’s Gift to Charity

by Stephen Bilkis

A man died and his last will was admitted to probate approximately five months thereafter. A New York Probate Lawyer said the complainant in this matter has a one-quarter remainder interest in the residuary trust established under the man’s last will.

One of the paragraphs in the last will is at issue that states that the hospital will be used to endow charity beds and for charitable purposes only as a memorial to the man’s sister and to himself.

A New York Wills Lawyer said that upon the death of each of several income heirs, the complainant received a principal payment for its remainder interest in the above testamentary trust. The amount of the principal payments received by the complainant is $157,452.10 in total. The present value of the funds held by the complainant, including accumulated interest, subject to the provisions of the deceased man’s last will totals approximately $850,000.00.

Published on: October 3, 2013

Petitioner Alleges Legal Malpractice

by Stephen Bilkis

A New York Probate Lawyer said that, in this SCPA 2103 discovery proceeding, respondents, the two principals in a law firm, move under CPLR 3211 to dismiss the petition seeking damages against them for their alleged legal malpractice. The discovery petition alleges that decedent and her post-deceased husband had told movants that they had agreed not to revoke their wills and that the essentially reciprocal wills movants drafted for them, which were executed on May 25, 1983, failed to include the language required to make this agreement enforceable.

A Bronx Estate Lawyer said that, the decedent died on October 22, 1992 and her will executed on May 25, 1983 was admitted to probate. Inasmuch as one of the movants became the successor executor of decedent’s estate, replacing post-deceased husband after he died, one of decedent’s nephews (hereinafter, the “administrator”), a residuary legatee named in the will, petitioned for and received limited and restricted letters of administration pursuant to SCPA 702(9) so that he might commence this discovery proceeding against movants. Although several reasons have been advanced by movants for the dismissal of the petition, the primary ground is that the lack of privity between any legatee under decedent’s will and the movants precludes the legatees from recovering damages based upon movants’ alleged malpractice in rendering legal services to decedent in the drafting of her will.

A New York Probate Lawyer said that, under the 1983 wills drafted for decedent and the post-deceased husband, after the death of the second spouse, almost 100% of both spouses’ estates would have passed 50% to decedent’s five nieces and nephews and 50% to the post-deceased husband’s four children from a prior marriage. The discovery petition alleges that, after decedent’s death, movants drafted a new will for the post-deceased husband which he executed on February 8, 1993. Under this will, one of the movants was nominated as the executor, the first $1,600,000.00 of the estate was bequeathed to the post-deceased husband’s children and only 20% of the residuary estate was bequeathed to four of decedent’s nieces and nephews. The post-deceased husband died on May 27, 1993 and his will executed on February 8, 1993 has been admitted to probate. It appears that decedent’s estate administration has an approximate value of $425,000.00 and that post-deceased husband’s estate has an approximate value of at least $2,000,000.00.

Published on: September 27, 2013

Petitoner Brings Will Contest Proceeding

by Stephen Bilkis

Two cases are before the court for resolution.

A New York Probate Lawyer said in the first case, the contestants in a will contest or probate proceeding of the Estate of A appeal from the order of the Surrogate’s Court, Kings County, entered on 9 October 1959 which denied their motion for the entry of an order denying probate to an alleged codicil in accordance with the court’s decision of 13 August 1957 or in the alternative, for summary judgment denying probate to said alleged codicil according to Rules of Civil Practice, rules 113, 114 and directed that the proceeding be placed on the calendar for a day certain.

The court affirms the order with one bill of $10 costs and disbursements, payable out of the estate.

Published on: September 8, 2013

Petitioner Moves for Summary Judgment in Will Contest Proceeding

by Stephen Bilkis

This is a probate proceeding wherein petitioner, A, moves for summary judgment pursuant to CPLR 3212 dismissing the objections to probate of the respondent, B, and admitting into probate the last will and testament of the decedent dated 7 April 1997 and a codicil dated 2 August 2006.

The court grants the motion in its entirety.

A New York Probate Lawyer said the decedent, C, died on 31 October 2010. C was survived by her husband, A, the petitioner, and by her two sons: B, the respondent, and D.

Published on: September 1, 2013

Probate Clears up Issue of Old Loan by Decendent

by Stephen Bilkis

In this Probate action, the decedent died leaving a will which was admitted to probate in July 2004. The decedent was survived by his four children. A New York Probate Lawyer said the will makes pre-residuary cash bequests of $45,000.00 to each child. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to one of the child.

A New York Will Lawyer said that the administrator originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, He filed a document which covers the same period covered by the First and Final Accounting. The Interim Account was verified by him nearly one year after the First and Final Account.

One of the administrator’s sibling filed objections to the accounting

Published on: August 19, 2013

Attorneys Fees Determined in Lengthy Probate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said iIn related probate and miscellaneous proceedings regarding the estate of the decedent, before the court is a proposed stipulation of settlement resolving the issues in both proceedings. Because the interests of the decedent’s infant son may be affected by the settlement, the approval of the court is required (SCPA 2106). The guardian ad litem appointed to represent the interests of the decedent’s infant son has filed his final report wherein he recommends that the court approve the settlement and authorize him to enter into it on behalf of his ward.

A Nassau County Probate lawyer said that the probate proceeding has been pending in the court for over three years and the miscellaneous proceeding, a discovery proceeding pursuant to SCPA 2103, has been pending nearly three years. The proposed settlement will end both disputes and provides for the infant son to receive a 10% interest in the decedent’s home, valued at approximately $1.5 million. The other 90% interest will be held by the child’s mother. A New York Will Lawyer said the stipulation of settlement is approved, the court being satisfied that the interests of the infant beneficiary and the other interested parties will be promoted by an end to the current litigation. The decedent’s will shall be admitted to probate in accordance with the terms of the stipulation of settlement.

Queens Probate Attorneys said the court must also fix a reasonable fee for the services of the guardian ad litem. The court notes that the stipulation of settlement provides that the fee of the guardian ad litem will be a charge against the general estate. With respect to the issue of attorneys’ fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: July 29, 2013

Court Decides if Deceased Had Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said this is a contested probate proceeding after trial before the court and a jury wherein a verdict was rendered by the jury finding that at the time of execution of the propounded instrument the decedent lacked testamentary capacity and that the execution of the instrument was caused or procured by undue influence and fraud. The evidence offered attributed the undue influence and fraud solely to proponent. The court espoused the verdict of the jury on these issues. The contestant has exercised his option to seek costs pursuant to SCPA 2302 upon the entry of the decree. It is the proponent’s contention that the court should not exercise its discretionary power to allow costs to the contestant since the proponent having been named in the instrument as executor was under a duty to offer the purported will for probate. The sole legatee in the instrument at issue was proponent’s wife.

A New York Will Lawyer said the court holds that as a general rule, a person named as executor has the duty to bring forward the will and to assume the burden of its probate. Having this duty, he will not usually be burdened with costs if he fails in his effort to have the instrument admitted to probate. But where it is shown, as it was in this case, that the executor was guilty of fraud and undue influence practiced by him personally in the fraudulent execution of the will, and with full knowledge of the fraud he attempted to impose the instrument upon the court as a valid document, it must be concluded proponent was acting in bad faith. In such cases, good morals and public policy dictate that not only should proponent be denied costs but that he be personally charged with discretionary costs for his unsuccessful effort as was ruled in the cases of Matter of Reeves, Matter of Godlef, Matter of Lachat and Matter of Jackson.

A Staten Island Probate Lawyer said the court has reached the conclusion that proponent should be taxed personally with costs. The application presents a question as to the amount of said costs. Contestant seeks the sum of $4,100. This amount includes $300 by reason of having a contest, $1,200 for 5 days of trial less one, plus $100 per day for 26 days spent in preparation for trial based in SCPA 2302(2)(a) (ii).

Published on: July 29, 2013

Probate Court Analyzes Landlord Tenant Relationship

by Stephen Bilkis

A New York Probate Lawyer said this is an appeal from an order of the County Court of Delaware County entered June 23, 2006, which, among other things, dismissed petitioner’s application, in a proceeding pursuant to RPAPL article 7, to recover possession of certain real estate property. In August 2005, the parties entered into a written contract for the sale of certain real property by petitioner to respondent. Respondent took possession of the property and, when he failed to pay rent and taxes and maintain homeowner’s insurance as allegedly required by the parties’ agreement, a New York Estate Lawyer said that petitioner commenced an eviction proceeding in the Justice Court of the Town of Colchester, Delaware County. In settlement of that proceeding, the parties entered into a written “Rental Agreement” providing that respondent, as “tenant,” would maintain possession and pay $1,000 owed for back rent and $1,000 monthly for rent thereafter, plus $95 for taxes and $40 for homeowner’s insurance as additional monthly “rent.” The rental agreement further stated that respondent was to obtain a mortgage commitment by December 2005 and, if he failed to do so, the prior contract of sale would be “cancelled” and petitioner, as “landlord,” would be entitled to a warrant of eviction.

A New York Will Lawyer said that, after respondent failed to obtain a mortgage commitment, petitioner obtained a warrant of eviction in Justice Court awarding him possession of the property on the ground that respondent “stipulated to a mortgage commitment which has not been obtained.” Upon respondent’s appeal, County Court concluded that Justice Court did not have subject matter jurisdiction, dismissed the petition and rescinded the amended warrant of eviction. Petitioner appeals and we now affirm.

The issue in this case is whether petitioner can recover possession of the said real estate property which is the subject of the litigation.

Published on: July 6, 2013

Plaintiff Petitions for a Rent-Stabilized Lease and Lease Renewal in Perpetuity

by Stephen Bilkis

This is an action for breach of an illegal oral contract to issue plaintiff a rent-stabilized lease and lease renewals, in perpetuity. The complaint filed in April 2004 asserts a right to a renewal lease under a tenancy created by a purported 1992 verbal agreement with defendant landlord’s principal. A New York Probate Lawyer said that the plaintiff allegedly paid $50,000 in consideration of “his understanding and agreement that he would have the right to remain in the apartment for as long as he cared to rent it,” in apparent disregard of whether the apartment was to be used as his primary residence. Defendant alleges that plaintiff maintains his primary residence in Florida.

A New York Wills Lawyer said that, defendant previously brought a holdover proceeding on non-primary residence grounds, which had been pending in Civil Court for two months when plaintiff commenced this action alleging breach of the parol agreement and seeking specific performance and monetary damages of $500,000. A New York Estate Litigation Lawyer said that, plaintiff’s first cause of action seeks specific performance and a permanent injunction against his eviction. The second and third causes of action allege breach of the 1992 oral agreement and seek monetary damages of $500,000 against defendants, respectively, for failing to offer plaintiff a renewal lease in January 2004 and for refusing to extend the term of the lease. The fourth cause of action seeks recovery of the $50,000 paid by plaintiff in 1992, asserting that such payment constitutes an illegal rent overcharge.

A Queens Probate Attorney said that, in the pending Civil Court holdover proceeding to recover possession of the subject dwelling unit, defendant alleged that plaintiff does not use the premises as his primary residence and, apparently, never has. However denominated, the present action seeks to impose upon defendant the obligation to continue the statutory tenancy indefinitely. Because the right to lease renewal can be adjudicated in the Civil Court proceeding and because it is dispositive of the asserted breach of contract, the complaint was properly dismissed on the ground that there is another action pending.